Mueller sued Taylor Swift for defamation and “tortious interference with his employment contract”; that is, that Taylor Swift’s allegation about the butt grab was fabricated, that she wrongfully pressured the radio station to fire him, causing Mr. Mueller three-million dollars in damage. In response, Taylor Swift counter-sued Mr. Mueller for assault and battery (the intentional, harmful and/or offensive touching of her person without her consent). Taylor Swift won and was awarded $1.00, as she had requested.

At the end of Muller’s presentation of his evidence supporting his claims against Taylor Swift for tortious interference with his employment contract (called his “case-in-chief”), Taylor Swift submitted a “motion for summary judgment”. In short, a motion for summary judgment (called a “MSJ” by lawyers) is an argument that in light of all the evidence, that there is no longer any dispute on the facts and therefore one person must automatically win. If a motion for summary judgment is granted, the “moving party” (here, Taylor Swift) automatic wins the issue and the jury does not get to decide the claim.

In this case, Taylor Swift argued that even after Mueller’s presentation of evidence, the undisputed evidence was that she did not personally influence Mueller’s termination of employment. In other words, Taylor Swift did not cause Mueller to be terminated. The MSJ victory was a mixed bag for Swift because Mueller’s claims against Taylor Swift’s mother and employees still went to the jury and were not automatically won. Even after the MSJ victory, Taylor Swift could have still been found “vicariously liable” for the acts of her employees (the legal principal of "respondeat superior"). In other words, Taylor Swift was still on the financial hook for any wrongdoing…assuming Mr. Mueller prevailed. Swift’s claims for assault and battery against Mueller still went forward after she won MSJ.

This was Taylor Swift’s second summary judgment victory. The first summary judgment motion tossed out Mr. Mueller’s claim for defamation (the publication of a disparaging statement that causes reputational harm) for not being filed within the legal deadline or “statute of limitations.”

California employees should note that motions for summary judgment are extremely common in employment discrimination, wrongful termination claims, and wage-and-hour class actions. Motions for summary judgments are always big consequential battles involving lots of legal work and preparation.

6. Mr. Mueller’s Attorney Took A Big Gamble in Closing Argument

Closing arguments (both sides’ final arguments to summarize their version of the case for the jury) were dramatic. Mueller’s (male) lawyer argued that Taylor Swift’s visible reaction was not consistent with a person who had just had her butt grabbed. Commenting on the photo Muller’s attorney said, “Look at her face, is that the face of someone who just had her butt grabbed? Is that the face of someone who is upset?” Muller’s attorney made a big gamble in making this argument because the eight person jury, six of whom were female, may have found it offensive.

The attorney’s inference –while arguably plausible- assumes that all persons would have a uniform, split-second visible reaction when being groped on camera. For example, some people may react in immediate visible disgust, while other people may freeze in absolute panic and shock, others still may have a delayed reaction caused from absolute disbelief of Mueller's outrageous behavior. Similarly, Taylor Swift testified that she did not want to draw immediate negative attention and spoil the entire event for the rest of her fans at the photo shoot. Moreover, why would Swift –now a proven victim of a sexual assault- want to compound the already horrible experience and go through additional public humiliation in the media after creating a scene? Swift's testimony is also consistent with the fact that it was Muller who initiatedthe lawsuit against Swift.

It is common for jurors to be interviewed by lawyers after a verdict is reached. It will be interesting to see how the jury reacted to Muller’s closing arguments and if it had any influence.

7. The Jury Deliberated for Under Four Hours

The jury deliberated for less than four hours before reaching a decision (“verdict”) against Mueller, and wrapped up the same day as closing argument. This is interesting because some juries will take several days or even much longer when deciding a case (called “deliberating”). Generally speaking, it is very bad for plaintiffs (in this case, Mueller) if the jury deliberates for just a few hours before reaching a verdict. This is frequently a sign that the Plaintiff will lose.

The quick jury deliberation was also an indication that that there was probably not a lot of disagreement among the jurors on essential facts, including the disputed issue of Mr. Mueller’s credibility. As predicted in Part One of this article, Swift’s attorney latched onto Mr. Mueller’s destruction of a secret recording in closing argument, referring to him as a, “Story telling evidence destroyer.”

Lastly, the fact that the jury reached a verdict the same day as closing argument may be an indication that the jury wanted to finish the case and go home rather than come back for an additional day of deliberation. It is generally bad for plaintiffs when jurors are eager to go home because it is often easier to simply find in favor of the defendant.

8. The Plaintiff Wants to Take A Polygraph

Mueller is still adamant that he did not inappropriately grab Taylor Swift and he has stated that he can pass a polygraph (lie detector) test to establish his innocence. Readers may be surprised to learn that, with some exceptions, that polygraph tests are generally inadmissible in federal court as unreliable scientific evidence. Absent an agreement with Swift’s lawyers (called a “stipulation”) Mueller probably would not have had a chance to enter polygraph results into evidence even if he had taken one.

Even if Mueller takes and passes a polygraph test, it will be too little too late. The legal principal of res judicata (pronounced “rez joodi kata”) would bar Mueller from re-litigating his claims against Swift. In other words, plaintiffs are not allowed multiple bites at the apple. Mueller is also barred from presenting new evidence, including polygraph results, if he appeals the verdict.

Celebrity trials like Mueller v. Swift always get a lot of publicity. But most of the time the interesting legal issues never make the headlines!

Brian Mathias is a California plaintiff’s employment lawyer and a former assistant professor of constitutional law in Santa Cruz, California. Brian represents employees in all aspects of employment law including discrimination, wrongful termination, unpaid overtime, and class action litigation. www.brianmathiaslaw.com

As many pop music fans are aware, Taylor Swift got sued. Former radio DJ David Mueller was terminated after he allegedly, “grabbed Taylor Swift’s buttocks beneath her dress” during a photo shoot at a June 2013 event. A professional photograph captures the very moment in question and can be viewed here. Mr. Mueller denies ever grabbing Taylor Swift.

Mueller then sued Taylor Swift for defamation and “tortious interference with his employment contract” for three million dollars; that is, that Taylor Swift’s allegation about the butt grab was fabricated, that she wrongfully pressured the radio station to fire him, causing Mr. Mueller three-million dollars in damage.

In response, Taylor Swift counter-sued Mr. Mueller for assault and battery (the intentional, harmful and/or offensive touching of her person without her consent). Taylor Swift is only seeking $1.00 in nominal damages, but is seeking attorney fees and punitive damages. The trial is underway now.

1. First Legal Take: The Wheels of Justice Turn Slowly

It has taken over four years for this matter to go to trial. The alleged assault and battery occurred in June 2013. Now, over four year later, in August 2017, the trial is underway. There are a variety of circumstances that can delay trial. However, it is common in California for trials to occur years after the underlying legal dispute and injury occurs. Appeals of any verdict, which are also common, will further delay the finality of any jury verdict by additional years. The wheels of justice do turn slowly.

2. Second Take: Mr. Mueller Destroyed Important Evidence

Shortly after Taylor Swift’s accusations against Mr. Mueller surfaced, Mr. Mueller was interrogated by his bosses about the incident. Unbeknownst to his bosses, Mr. Mueller secretly recorded the two hour conversation. Mr. Mueller allegedly admitted at the meeting that he may have touched Taylor Swift’s buttocks but that it was “incidental”.

Mr. Mueller then stored the secret audio recordings on an iPhone, a laptop computer, and an external hard drive. However, even after contacting a lawyer to sue Swift, Mr. Mueller gave away, lost, and/or destroyed all the electronic devises and no longer has the recording. No one but Mueller has heard the recordings.

In response, Taylor Swift filed an order for “sanctions” (meaning a request to impose a penalty) against Mueller for the bad faith “spoliation of evidence”. Taylor Swift won her motion for sanctions, and as a result Mr. Mueller will be cross-examined in front of the jury on the issue of why he destroyed highly relevant evidence after litigation was contemplated. While this line of questioning may not ultimately make the tabloid headlines, it will undoubtedly be a top trial highlight for Taylor Swift’s attorneys who will have a field day on this issue. Mr. Mueller will be lucky to prevail in light of this issue alone.

As a lesson from this case, employees should never secretly record conservations with their bosses. It is a crime in California to do so. Next, prospective litigants should preserve all evidence, good and bad. Destroying evidence will naturally cause jurors to infer that the evidence was destroyed because it was very harmful for their case, especially if the evidence was objective in nature (such as a tape recording or photograph). Similarly, California jury instructions permit jurors to distrust weaker evidence when stronger evidence can be produced, as was the case here.

3. Why is T-Swift suing for just a buck?

Taylor Swift is suing her alleged groper for just $1.00… well, sort of. A person may sue for what are called “nominal damages” meaning the Plaintiff may not have not suffered much actual harm, but that a token amount of nominal damages should be awarded as a symbolic gesture. As a famous example, President Teddy Roosevelt sued and won six cents in nominal damages against a newspaper publisher who falsely claimed that, “Roosevelt was getting drunk… and not that infrequently.” The former president really just wanted to prove a point to protect his reputation.

However, even if Taylor Swift wins nominal damages of just one dollar, she could still argue for and possibly obtain “punitive damages” (damages awarded to punish the wrongdoer’s particularly despicable conduct). A case involving a sexual assault could generate very large punitive damages against Mr. Mueller, particularly in light of Ms. Swift’s graphic testimony where she described the incident. Similarly, Ms. Swift could win her attorneys fees. Attorney’s fees could be in tens of millions of dollars after four years of contested litigation with a celebrity-level trial team.

4. The Photographic Evidence Is Damning

A key piece of evidence of in the trial will be the photograph that captured the very instant in question. It may be viewed here. Jurors in any case are allowed to draw “reasonable inferences” from evidence and apply common sense. The photograph in question shows a grinning Mr. Mueller with his arm and hand behind Taylor Swift’s lower back noticeably near her bottom. In this writer’s testimony opinion, it will be very difficult for Mr. Mueller to prevail in light of this photograph, particularly in light of the spoliation of evidence issue and the testimony of Taylor Swift. Perhaps Mr. Mueller was hoping for a quick settlement against deep pockets when the case commenced, but has now bitten off more than he can chew.

Brian Mathias is a plaintiff’s employment law attorney and former assistant professor of constitutional law in Santa Cruz, California. Brian represents employees in all aspects of employment discrimination, defamation, and wage-and-hour class actions.